News came on April 24th that the Air Force had decided to drop all remaining charges against MSgt. Mike Silva, at long last drawing the curtain on a shameful saga of injustice and corruption. For Silva, it was an outcome he’d dreamt about for years while locked away in a jail cell, his life and reputation savaged by a kangaroo court.
What happened to Mike Silva proves that the Air Force has no business running its own court system. It lacks the moral discipline, the ethical commitment, the basic objectivity, and the sense of political independence. Air Force prosecutors don’t serve the law. They serve commanders. They don’t seek justice. They seek to advance and protect the service’s interests. In the case of Mike Silva, they proved themselves willing to trash a man’s life in order to appear tough on sex crimes at the height of the Lackland scandal … a bureaucratically mandated, media-fueled search for scalps masquerading as a search for justice.
The Air Force had, at the time, taken a fresh beating in Congress over its inability to engender basic respect and dignity in the ranks, one manifestation of which was an unacceptable incidence of sex crime together with a pattern of inappropriate command responses to complaints of sexual misconduct.
The service set out to address these issues with a public showing of seriousness. What followed will someday be scrawled into legal texts as an example of unlawful influence baking fundamental unfairness into a process designed to find the truth rather than harvest the pelts of legal quarry.
Mike Silva was convicted in 2015 on three specifications of rape and sentenced to 20 years in prison, total forfeiture of all pay and allowances, and reduction to E-1. His life was left in shambles.
His charges arose from an allegation made by a former Air Force basic trainee who’d been in a flight Silva briefly supervised during his time as a Military Training Instructor (MTI) in 1995, seventeen years before she raised the complaint. The woman, who ultimately never graduated from Basic Military Training and never served a day in the Air Force, was seeking VA benefits at the urging of her then husband, an Army veteran who was himself drawing such benefits. She had been diagnosed with a mental disorder.
The woman’s claim could not be corroborated with physical evidence, eyewitnesses, contemporaneous complaints, or anything else. But it was open season on Lackland and particularly on MTIs at the time the allegation was fielded, so the Air Force’s Office of Special Investigations (OSI) did what it saw as imperative: it engaged in a wide-ranging fishing expedition looking for any evidence it could unearth.
This led to additional allegations from Silva’s ex-wife, who he’d divorced over her objection two decades previous. She made vague allegations that could not be corroborated or independently supported, but OSI nonetheless treated them as actionable. When she later recanted her entire story, this didn’t stop prosecutors from introducing the knowingly vacant allegations at trial.
OSI went on to coach and coax similar allegations out of a third person, another who had a relationship Silva long in the past and whose recollections existed in isolation from a shred of corroborative evidence.
The entire case consisted of he-said/she-said evidence. Silva vehemently denied the accusations.
Despite the lack of credible evidence and the fundamental weakness of the case, prosecutors proceeded with it, no-doubt seeing it as imperative in the political environment of the time. The pressure applied to them from Washington had morphed San Antonio into a modern-day Salem. They took the Silva case to trial, where they argued that the sheer weight of disparate allegations of rape demonstrated a propensity to offend. The court allowed this argument and the panel bought it. Silva, to the shocked disbelief of just about everyone, was convicted.
Last summer, the Air Force Course of Criminal Appeals (AFCCA) set aside the convictions, issuing an opinion that not only critiqued the trial judge’s application of the law, but called into question the fundamental strength of the case. The core legal reasoning concerned the judge’s allowance of a propensity argument at trial. Prosecutors had argued, paraphrasing, that if the jury found an allegation of sexual assault against one victim credible, this could be used to support an inference that other allegations were true.
With this bizarre legal alchemy, it’s possible to convict someone of a sex crime based on separate allegations that themselves cannot be proven, but can lead to a conviction if yet other allegations are considered credible. This is not the way propensity evidence is supposed to work under the rules of evidence. Credibility is not the legal standard for a conviction. It is beyond reasonable doubt that prosecutors knew this, but behaved cynically, motivated by winning rather than justice — even at the cost of a good man’s freedom.
A year after Silva’s conviction, reviewing a separate case called U.S. v. Hills, the military’s highest appellate court affirmed that propensity evidence could not be used in this manner. This set the table for his appeal to be successful, but in issuing the opinion vacating his convictions, AFCCA took pains to comment on other weaknesses in the case.
AFCCA’s opinion should have been the end of the story for Silva. He should have been processed out of Leavenworth the next day and greeted on his return home by a representative delivering apologies from the chain of command. Sadly, the nightmare would go on.
The next thing that happened to Silva was that his name was sullied in the media with a slew of biased reporting that spent precious few words acknowledging his legal innocence and truckloads recounting the unproven allegations in lurid detail. Leading this charge was Sig Christensen of the San Antonio News-Express, who had made a name for himself reporting on the Lackland scandal. I singled him out for criticism in response to his shockingly biased article, which gave aid and comfort to corrupt lawyers and commanders who subsequently dug in their heels and refused to set Silva free.
The Air Force had 30 days to make a decision about Silva and either retry him or set him free. When that 30 days came and went, not one major media outlet reported on the Air Force’s failure to release Silva, a violation of the law. We reported on it here after sending inquiries to the Air Force, which were roundly ignored. Another 40 days would pass before Silva was finally released from prison, a grotesque example of the kind of shameless and cruel foot-dragging engaged in by corrupt officials who fail to grasp the responsibility that comes alongside the power they wield.
Of course, the nightmare would drag on for eight more months. The Air Force cynically decided to retry Silva, a decision having nothing to do with evidence and everything to do with posturing and zero-sum legal maneuvering. The service refused to be seen waving the white flag on a sex prosecution while everyone was looking, so it stood its legal ground until the story blew over, choosing a quieter time to drop the matter and move on.
Of course, the official version is chock full of nonsense about legal technicalities and statutes of limitations. None of it is genuine or relevant to the Air Force’s decision. What really happened is that some of the witnesses refused to testify and others’ accounts were too weak to sustain charges. This of course had been the case all along, but only when it served the Air Force’s interests to make the proper decision did it choose to do so.
One of the more disappointing footnotes in this sordid saga comes from Don Christensen, a former Air Force prosecutor who now leads Protect Our Defenders, an organization advancing the cause of military sexual assault victims. Christensen is an honorable man, but the following comments he made to the media do him a huge disservice:
“My concern is that … (Silva’s supporters) will be saying all this proves he was innocent, proves he was railroaded … no, all this proves is that he twice has benefited from (judges) changing their mind on the status of the law.”
This is one of the more unfortunate loads of rubbish ever uttered about this case — or any other for that matter. Legal innocence is innocence, period. In our system, that’s how it works. If the government can’t prove you did something — or can only prove it by cheating or stretching the rules beyond the point where they can sustain elemental fairness — you are innocent. There is no “innocence light” or “innocent because of a rule change.” Mike Silva is innocent, and that’s what the likes of media and advocacy groups should be crowing about. Don Christensen should want more than anything for military prosecutors to do their jobs credibly and fairly, as this engenders confidence in the legal process, which deters offenders and encourages victims to report.
The Silva case proves all by itself that the Air Force should not have courts or lawyers. Command influence has been baked into its prosecutorial culture and cannot be extracted now.
Investigators should never have referred the case to prosecutors. The evidence was too weak and the witnesses too problematic. Prosecutors should never have proceeded. The judge should never have permitted prosecutors to argue propensity, a scam without which no conviction would have been obtained. The appellate court holding should have immediately freed Silva with no contemplation of retrial. And finally, the decision to abandon the retrial should have come much quicker — not one second after the evidence was reviewed by the convening authority and found wanting.
All of these retrospective shoulds should have been wrapped in a public relations approach granting perceptual fairness and dignity to a man wrongly accused, instead of vilifying him for the sake political expediency. And of course, now that it’s all over, the Air Force should be re-adopting Silva openly, and telling his story objectively so everyone can learn from what happened to him.
The fact none of this is happening underscores how far gone the Air Force is when it comes to law and order.